Author: Helen Norton

Corey Brettschneider’s theory of value democracy urges that “the state should simultaneously protect hateful viewpoints in its coercive capacity and criticize them in its expressive capacity.” Although he is primarily interested in political theory rather than constitutional law, Corey’s approach nonetheless invites engagement with the Supreme Court’s emerging government speech doctrine even while he builds on it. Under this doctrine, the Court treats government’s own speech as exempt from free speech clause scrutiny. This approach leaves the government generally free to adopt and deliver whatever message it chooses when it speaks on its own behalf, with political accountability (rather than the free speech clause) as the recourse available to those unhappy with their government’s expressive choices. But Corey finds the government speech doctrine too “often couched in excessively value-neutral terms. A value-neutral approach would allow the state to promote whatever message it wishes, even if it expresses a message directly opposing the reasons for rights. In contrast to a value-neutral theory of state expression, democratic persuasion is distinctly non-neutral, and calls for the state to express a message that promotes the values of free and equal citizenship. This is an obligation, not distinct from rights, but that comes from the obligation to promote the reason for rights.” In other words, while the Court’s approach simply recognizes that government has the expressive power to speak, Corey insists that government has an affirmative duty to speak in a certain way (at least on certain matters).

Because I have written in the past about what government should not say (e.g., exploring whether and when we might understand government’s hateful speech to violate the equal protection clause), Corey’s theory is especially interesting to me because he focuses instead on what government should say. As a matter of political theory, he maintains that government has a duty to condemn hateful speech and to seek to persuade citizens to embrace equality values as their own. Even so, he urges that “the state should not seek to transform all inegalitarian beliefs, but only those that challenge the idea of free and equal citizenship.” This, of course, rests on the contestable premise that we can meaningfully parse speech that denies equal citizenship from that which does not. And although I understand why Corey is more interested in examining the state’s duty to speak than limits on that speech (to be sure, he notes establishment clause and perhaps other constraints on government expression), I still feel that the latter issue deserves greater attention in a discussion of this topic.

For example, a number of scholars have proposed various free speech clause limits to the government speech doctrine – especially in situations where the line between government persuasion and coercion is faintly drawn — but as yet the Court remains unmoved. I’m particularly troubled that the Court has failed to insist that the government affirmatively identify itself as the source of contested speech as a condition of asserting the government speech defense to free speech clause challenges. Indeed, it seems to me that government speech is most valuable and least dangerous when the public can identify the government as speaker, and thus is empowered to hold government politically accountable for its expressive choices.

To be sure, determining expression’s governmental source is generally not a problem with respect to the collective speech (such as a report, proclamation, or resolution) of a government agency or body. But some situations raise greater challenges, as is the case with the expression of individual government officials who also retain free speech rights of their own. For example, under what circumstances does the Constitution permit — or should value democracy allow — a government employer to punish its employee for speech inconsistent with the government’s own expressive choices? Corey maintains that public officials have an affirmative duty to promulgate the values of free and equal citizenship. More specifically, he emphasizes “the distinct importance of public officials’ following through on their public commitments and pronouncements,” and applies this principle to justify a public school’s firing of a teacher who publicly advocates the Klan’s views. I’ve suggested a similar conclusion in certain narrow circumstances from a value-neutral perspective, urging that the speech of public employees who serve as the voice and/or the face of the government potentially poses such grave threats to government expression to justify government’s control of their communications. Either approach, however, requires that we take on the hard job of determining which government jobs trigger such expectations and when such employees’ speech truly threatens the government’s expressive commitments. To this end, I would have liked to have seen Corey grapple with possibilities less extreme than the Klan in the public schools.

Despite the questions I’ve sketched out here, I remain largely sympathetic to Corey’s efforts to reconcile our often-competing commitments to free speech and equality. His is an ambitious project – and also an optimistic one. I’ll close by suggesting that Corey’s case might have been made even stronger with more evidence in support of such optimism – i.e., when and under what circumstances are government’s efforts at democratic persuasion most likely to be successful in persuading folks of the values of free and equal citizenship?